Losing the War on Terror

David Cole, a professor at the Georgetown University Law
Center and the
Nation’s legal affairs correspondent, has
been an outspoken critic and chronicler of the Bush
administration’s constitutional high jinks during the ‘War on
Terror.’ In his latest book,
Less Safe, Less Free: Why America
Is Losing the War on Terror (New Press, 2007), Cole and
coauthor Jules Lobel scrutinize the public record to show how
Bush’s tough-guy tactics have not only unjustly constricted our
civil liberties but have failed to catch the ‘evil doers.’

Utne.com caught up with Cole after a lecture at the Magers and
Quinn bookstore in Minneapolis.

Why are we less free?

The Bush administration has adopted a particular approach to
fighting terrorism, something it calls the ‘preventive paradigm.’
This paradigm seeks to employ the most coercive measures that a
state has against people, not because of what they have done but
because of what they might do. When you interrogate people based on
the sense that we might be able to prevent a terrorist attack in
the future, or go to war against a country that didn’t attack us —
Iraq — on a preventive theory, you put tremendous pressure on the
basic principles of this country.

The Bush administration has taken the position that it can lock
up anyone anywhere in the world — including US citizens — without
any hearing whatsoever, without any access to a lawyer, simply
because the president considers him to be, in his words, ‘a bad
guy.’ We’ve sacrificed the principles of the First Amendment’s
right of association in the name of punishing people for their
association with quote/unquote terrorist groups — groups that have
been labeled terrorist. We’ve seen sacrifices in commitments to due
process because of the Bush administration’s notion that the
government can coercively interrogate people to try to get
information out of them.

You argue that we’ve been made less safe by

The stated justification for these measures is indeed to keep up
more safe, but our argument in this book — based on the six years
of evidence we’ve had to assess how the administration has done —
is that we are in fact less safe as a result of these measures. We
show that many of these tactics have captured few if any
terrorists; have disrupted few if any terrorist plots; and have had
tremendous negative consequences, both in terms of immunizing
people who are bad from being brought to justice (because the
information on them was tainted because it was gotten by torturing
somebody) and in terms of prompting a tremendous amount of
resentment against the United States.
So what’s the alternative?

There are a whole range of sensible preventive measures that can
make us safer without causing tremendous blowback, because they’re
consistent with the rule of law. There’s guarding nuclear
stockpiles around the world so that terrorists won’t get them;
better screening of cargo on airplanes; better screening of
containers coming into shipping ports; better information sharing
among law enforcement intelligence. A more thoughtful foreign
policy would undermine some of the big problems that drive people
to support groups like al-Qaida. We could engage with the world in
more positive ways through foreign aid instead of putting military
bases around the world. And, when we use coercive methods
— because sometimes coercive methods are justified — we need to
do so in accordance with the rule of law. If we had done that, we
would be both more free, and more safe.

Why do people still subscribe to the preventive

There are people in this administration who think that the only
thing that works is hard power, military might, acting tough. If
the last six years have shown anything, it’s that it doesn’t work.
We need to be much more attentive to our soft power, to our
influence throughout the world, to our legitimacy. What everybody
agrees on is that this is a war of ideas. We’re not going to win
the war of ideas if we are perceived as engaging in illegitimate

There are other countries that have dealt with terrorism
in the past. Do their struggles offer any insights for

They do. For example the UK has struggled with terrorism for
decades. With the Irish Republican Army (IRA), the government’s
initial responses were somewhat similar to the responses the
administration here undertook. They authorized long-term internment
without trial; they authorized coercive interrogation; they
overreacted in a variety of military ways. What they found was that
these tactics only strengthened the support within the Irish
community for the IRA. Nowadays it’s widely accepted within the UK
that these measures are counterproductive. You’ve got to be
resilient; you’ve got to be measured in your responses. The last
thing you want to do is declare a war and treat the terrorists as
warriors. That gives them the kind of renown that they want.

Is there any light at the end of the

Well I certainly hope so. Part of the reason why we wrote the
book is in the hope that by showing people what has happened,
people will realize that there are much smarter ways to fighting
terror without the negative consequences of the
play-tough/act-tough mentality of the Bush administration.

So you’re more play-smart, think-smart?

Yeah, and already there’s been some pushback on a number of the
administration’s worst excesses. On torture, they had to retract
the torture memo. On [the UN Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment], Congress
rejected the administration’s interpretation of that treaty to not
apply to foreigners outside of the United States. The Supreme Court
rejected their view that the Geneva conventions don’t apply. On the
National Security Agency’s warrantless wiretapping program, a court
held it unconstitutional [and ?ordered the program] terminated.

There has also been a lot of pushback since the Democrats came
to power, I think as a result of [popular] dissatisfaction with
Iraq. We need to build on that if we’re going to try to restore
America to anything like the status it had before 9/11.

How much do you think newspaper-reading civilians know
about the war on terror?

A lot of what we know has only been disclosed by virtue of
leaks. No one really knows how much is still behind closed

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